No Firearms Exception to the Fourth Amendment

By Dave Kopel

From the "Cultural Revolutions" sections of
Chronicles magazine.
August 2000, pp. 7-8. More by Kopel on the
Fourth Amendment. Kopel's amicus brief in the J.L. case, on behalf of the Independence
Institute and the National Rifle Association, is
available here.

The Supreme Court attracts the most attention when it does something
new, or does something so old that it seems new. For example, the
decision last May in the Morrison case-declaring that Congress had
no authority to enact the Violence Against Women Act under the guise
of regulating interstate commerce-got lots of deserved media
attention. Since 1995, the Supreme Court has begun some tentative
enforcement of the Constitution's limitations on the powers granted
to Congress. Since the Supreme Court had ignored this part of the
Constitution from 1937 to 1995, the Supreme Court's renewed
attention to the Enumerated Powers Doctrine does merit media
attention.

But some of the Supreme Court's most important work is performed
when the Court refuses to do something new-when the Court declines
to create an "innovative" exception to constitutional rights. Thus,
the most important Bill of Rights decision of the 1999-2000 Supreme
Court Term came when the Court refused an invitation to invent a
loophole that would have nearly destroyed the Fourth Amendment,
which prohibits unreasonable searches and seizures.

In Florida v. J.L., an anonymous telephone tipster had claimed that
young black male wearing a plaid shirt, and standing at a certain
bus stop, was carrying a gun. Some police officers went to the bus
stop, and saw three young black males, one with a plaid shirt. They
frisked him, and found a gun.

Under existing Fourth Amendment doctrine, the search was plainly
unconstitutional. The teenager, a fifteen-year-old, had not been
doing anything illegal or suspicious, or which would make a police
officer afraid about safety. The tipster was completely anonymous,
and had said nothing beyond a bare accusation, so there was no way
to evaluate the tipster's credibility or basis of knowledge.

After the Florida trial court, following current doctrine,
suppressed evidence of the gun (since the gun had been illegally
seized), the Florida Attorney General appealed the case, eventually
reaching the U.S. Supreme Court. There, the Attorney General argued
that there should be a "firearms exception" to the Fourth Amendment.
Because guns are so dangerous, the Attorney General reasoned,
searches for guns should not have to meet ordinary Fourth Amendment
standards.

Writing for a unanimous Supreme Court, Justice Ruth Bader Ginsburg
disagreed. Her opinion noted how easy it would be for citizens to be
harassed if anonymous tips about guns could, by themselves, serve as
the basis for an anonymous stop and frisk.

In the 1968 case Terry v. Ohio, the Supreme Court created a large
Fourth Amendment loophole by allowing police officers to stop and
frisk people who seemed to be acting in a suspicious manner.
Although the Terry case was premised on the need for officer safety,
in case the suspicious person were a criminal who might use a gun
against the officer, the Terry case became the foundation for dozens
of new Fourth Amendment exceptions, in situations having little to
do with officer safety. Had the Florida Attorney General prevailed
in Florida v. J.L., the case would have become the foundation of
many more exceptions to the Fourth Amendment.

Although the J.L. case involved a frisk of a pedestrian, there would
have been immediate pressure to apply the "firearms exception" to
searches of automobiles, businesses, and homes. All over the
country, prosecutors would have argued, sometimes with success, that
the Fourth Amendment should also disappear in the alleged presence
of other dangerous things-such as knives, brass knuckles, or drugs.

And since ordinary Fourth Amendment restrictions would not apply,
mere assertions-rather than probable cause or reasonable
suspicion-would have become the basis for searches, and everyone
would be in jeopardy of being searched at whim.

The Supreme Court's swift and unanimous ruling may signal that the
Court is unwilling to let political hysteria over guns be used to
weaken the Bill of Rights. If so, today's Court is wiser than the
Supreme Courts of the 1920s (when fear of communism was allowed to
trump the First Amendment) or the 1980s (when the "drug war" was
allowed to degenerate into a war on the Constitution).

Not since World War One has there been a Democratic President so
aggressively hostile to the Bill of Rights, so it was unsurprising
that the U.S. Solicitor General filed an amicus brief in favor of
the "firearms exception."

What was surprising, however, was the broad collection of amici who
wrote in support of the Fourth Amendment. The American Civil
Liberties Union and the National Association of Criminal Defense
Lawyers supplied amicus briefs, as they often do in Fourth Amendment
cases. But so did the Rutherford Institute, which focuses mainly on
freedom of religion. The National Rifle Association joined with the
Independence Institute (a free-market think tank), in a brief which
I co-authored, to point out that firearms carrying is common and
legal in most the United States, and not inherently suspicious.

Even the Southern Poverty Law Center, which has spent much of the
last decade raising direct mail revenue from credulous donors
panicked about "militia terrorism," contributed an amicus brief on
J.L.'s behalf.

Grover Norquist, head of Americans for Tax Reform, has observed the
growth of a "Leave Us Alone Coalition"-in which disparate people
come together to uphold principle that the government should leave
people alone. People such as homeschoolers, gun owners, and hemp
activists are realizing that protecting the lifestyles of people
they don't like is the best way to ensure protection for their own
lifestyle. Florida vs. J.L. was a great victory for the Bill of
Rights. As groups such as J.L.'s very diverse amici come to
understand their common interest in protecting every single one of
the Bill of Rights, there will be more victories for the
Constitution.

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